News

Dash Farrow partner Tim Farrow was recently asked by the New Jersey Law Journal to comment on the New Jersey Supreme Court’s recent ruling in the case of State v. Zalcberg, regarding blood draws by police in reference to investigations of Driving While Under the Influence (D.W.I.). Drawing blood is considered a search under the Fourth Amendment and thus generally requires a search warrant prior to execution, unless exigent circumstances are sufficient to justify an exception. This recent ruling broadens the circumstances that qualify for an exception to that requirement.

The NJ Law Journal is New Jersey’s premier publication for legal news and updates. Mr. Farrow was asked to comment based upon his experience and expertise in handling numerous DWI cases like this throughout his career.

“The state court’s ruling appears to shake up the U.S. Supreme Court’s 2013 decision in “Missouri v. McNeely,” which held the natural metabolization of alcohol in a defendant’s blood was insufficient to justify a warrantless draw.

In light of the New Jersey Supreme Court’s Zalcberg decision, some legal observers believe police will be more inclined to draw blood from drunken driving suspects without a warrant.

The court ruled on March 27 in State v. Zalcberg that a suspected drunken driver’s constitutional rights were not violated when police had a sample of her blood drawn without her consent at a hospital. There, the court ruled a series of exigent circumstances, including a police force that was not trained in how to obtain warrants by phone, relaxed the need for a warrant and rendered the drawing of blood from Shayna Zalcberg constitutional.

Other exigent circumstances were the presence of multiple injured parties, an unconscious defendant, the evacuation of injured parties by helicopter, the need to reopen the highway after the crash, and a limited number of officers working the crash scene, the court said.

The court’s ruling in Zalcberg appears to shake up the U.S. Supreme Court’s 2013 decision in Missouri v. McNeely, which held that the natural metabolization of alcohol in a defendant’s blood was alone insufficient to justify a warrantless blood draw.

“My fear is it might encourage police officers not to think about warrants entirely,” said Jon-Henry Barr, a past president of the state municipal prosecutor’s association. “The appropriate message from this ruling is if it’s going to be extremely difficult or impossible to get a warrant, you’ll be OK by not getting one. The court seems to go out of its way to explain that [the Zalcberg case] is a limited factual circumstance.”

“I have very limited experience in seeing police go through the hoops of trying to get a telephone warrant. My view is they should always try to get consent and if they can’t get consent, then get the warrant,” said Barr, who heads a firm in Clark, New Jersey.
Police officers could use more training on the subject of warrantless blood samples, Barr said.

The case concerned a 2011 crash in Freehold Township in which a vehicle driven by Zalcberg, who had two passengers, struck another car. A passenger in Zalcberg’s car, Feliciano Colon, was killed. Police had probable cause to suspect Zalcberg was drunk when paramedics reported she smelled of alcohol, and a small liquor bottle was found on her car’s console, according to the court’s decision.

“We conclude that the officers’ lack of awareness of any formal procedure through which they could obtain a telephonic warrant, coupled with their pre-McNeely belief that they did not need such a warrant, suggests there was no reasonable availability of a warrant,” Justice Faustino Fernandez-Vina wrote for the majority.

One aspect of the Zalcberg ruling that is troubling is its recognition of the arresting officers’ professed ignorance of the telephone warrant procedure, said Timothy Farrow of Dash Farrow in Moorestown, a criminal defense lawyer who frequently handles drunken driving cases. Farrow agrees with the court’s two dissenters in the Zalcberg case, Justices Barry Albin and Walter Timpone, that an officer’s ignorance of the law does not justify violation of an individual’s constitutional rights.

What’s more, said Farrow, the ruling’s grant of an exemption for exigent circumstances “could be interpreted by officers or departments to mean that as long as you document that and it’s not bad faith, it’s OK if you don’t get a warrant. It’s definitely going to loosen it up a little bit,” he said.

Farrow said the system for obtaining telephone warrants has improved since the time of the 2011 crash that was at the center of the Zalcberg case. A telephone warrant can be obtained in about a half-hour, he said.

“It’s still not what I would call easy and what the officers and prosecutors and judges would call an easy process. At the same time, it’s much more efficient than it used to be,” Farrow said.”

If you or someone you know needs legal assistance related to driving while under the influence (DWI) contact the experts at Dash Farrow LLP today. Consultations are free and confidential.

For more information about Dash Farrow, LLP or to schedule a consultation, Contact Us.

Misidentification by eyewitnesses still happens in NJ but much less thanks to changes in our law. I have successfully challenged witness identifications and carefully examine them in every case, but since NJ changed the law regarding identification procedures seven years ago in the case of State v. Henderson, challenges are much less necessary. Since that case, law enforcement is required to show one photo at a time instead of an array and it is a blind administration, meaning the officer showing the photos knows nothing about the case and therefore cannot influence the identification.

I have seen significant changes since these changes. Eyewitness identification is never the sole piece of evidence, and rarely even the primary piece. The system is better for it, but it still exists and should be examined and investigated with the utmost caution.

From Philly.com Article by Jonathan Lai & Mensah M. Dean:

“The face of an attacker should be seared into memory forever. How could you forget the person who raped, stabbed, or shot you?

Or so crime victims — and, often, jurors — believe.

But as scientists and criminologists have documented, memory is often an unreliable resource, especially when the attacker and the victim are of different races. And advances in DNA analysis in the last 30 years that have brought a harvest of exonerations have underscored the pitfalls of overreliance on eyewitness testimony.

Misidentifications can be reduced, and New Jersey led the way when it reformed police procedures 16 years ago. That was spurred by cases such as that of David Shephard, who spent more than a decade in prison after being convicted of rape and robbery.

But most states, including Pennsylvania, have been slow to follow New Jersey’s lead. And accusations can cast a long shadow.

Just ask Shawn Yarbray, who was acquitted by a jury last week after being charged with the May 2017 attack on Philadelphia City Councilman David Oh. Even after the acquittal, Oh remains convinced that Yarbray was the man who stabbed him in the ribs and slashed one of his arms. Oh continues to publicly accuse Yarbray of the attack.

Or ask Robert Williams, who spent three years in jail waiting to be tried for a Germantown corner-store robbery and assault before being acquitted in February by a jury that deliberated for just 73 minutes. Paranoia stays with Williams, who has since found work with a food-delivery company and is making plans to go to divinity school.

“It’s scary, because I never know when the police may be at my door,” he said. “They took me from my family, it was traumatic.” At the time of his arrest, Williams had a 2-year-old son and a pregnant wife. The family had bought a home in Strawberry Mansion. “There’s always a chance the police are upset about the verdict, and they may come and try to pin something else on me.”

Shephard expressed similar anxieties. DNA evidence eventually cleared him, but the time locked up disrupted his life, and the psychological and emotional toll persists.

“You never move past it,” he said.

Besides the personality changes — Shephard is quicker to anger, less trusting — he fears being falsely accused again. He dislikes going out alone, wanting a witness with him at all times. It took him more than a year to stop collecting bus receipts every time he went out, adding them to the box under his bed in case he might have to verify an alibi.”

Several districts dealt with police investigations and arrests on Monday as NJ continues to be on edge following the Florida shootings.

From Patch.com:

“Several school districts dealt with security scares on Monday, leading to at least two arrests, a lockdown and three police investigations. In one district, a student was even reportedly led away in handcuffs after the SWAT team responded to a potential threat in Bergen County.

New Jersey has dealt with a number of threats like these since 17 people were killed in the Florida shooting massacre. Over a two-day period recently, four people were arrested – including a 12-year-old – after several more threats were made at New Jersey schools.

Comments from NJ Criminal Defense Attorney Tim Farrow:

The increased security concern at our schools is certainly more than warranted after the recent tragedy at Parkland, Florida. However, an arrest and issuance of a juvenile complaint carries serious consequences that should not be undertaken lightly. What previously might have been dismissed as a careless comment or joke by teenager now is more likely to be construed as a potential threat and lead to an arrest and charge. Charges such as Terroristic Threats and False Public Alarm carry potentially serious consequences for a juvenile. A juvenile could be detained upon arrest pending trial, and although first-time offenders will likely receive probation and avoid incarceration, long-term consequences such as loss of financial aid are possible. An adjudication for False Public Alarm also carries restitution for as much as $3,000.00

Here is what happened one Monday in late February 2018:

Dumont

A Dumont High School student was in custody after the school was placed on lockdown Monday, according to reports. NorthJersey.com reported that the student was taken into custody. Authorities led a student away from the school in handcuffs, NBC4 reported.

A student posted on Twitter at 1:35 p.m. that the school had been on lockdown for two hours at that point. Students reportedly hid under their desks. The nature of the threat was not immediately clear, according to NBC, nor was it clear if the threat was made from inside the school. Several worried parents were reportedly waiting across the street from the school.

Cranford

A Union County College student was arrested and charged with bringing fake guns into a classroom on the main campus in Cranford Monday morning, authorities announced.

Eric Jacobs, 20, of Millburn in Essex County, is charged with fourth-degree possession of an imitation firearm for an unlawful purpose and creating a hazardous condition, a disorderly persons offense, acting Union County Prosecutor Michael A. Monahan and Cranford Police Chief Ryan Greco jointly announced.

A college employee spotted “a person who appeared to have a concealed weapon” on campus at about 10 a.m. and notified on-site public safety personnel.”

Since founding the firm in 2008, Ben Dash and Tim Farrow have provided expert legal advice to businesses and individuals throughout the region in areas such as real estate, litigation, corporate, criminal defense, and DUI. With experience in a variety of legal issues, including high-profile cases receiving national attention, Ben is often called upon to share his legal knowledge of real estate, corporate transactions, and litigation matters with business, trade and professional groups.

Before devoting his career to criminal defense more than 10 years ago, Tim worked on the other side of the courtroom – first as a law clerk in Camden County Superior Court for a criminal judge, then as an assistant prosecutor in Burlington County. Today, Tim provides criminal defense counsel at all levels, including expungement, driving-related charges, disorderly persons offenses, juvenile crimes and indictable (felony) offenses.

If you or someone you know needs legal assistance related to juvenile crimes contact the experts at Dash Farrow LLP today. Consultations are free and confidential.

For more information about Dash Farrow, LLP or to schedule a consultation, Contact Us.

Or, Why Do I Have To Sit In The Reception Area?

Very often, an older client will come to my office for an initial consultation for estate planning, and they will bring their son, daughter, or grandchild with them. Sometimes, it is the family member themselves that sets up the appointment. The client wants the family member to sit in on the consultation for a variety of reasons. It could be that the presence of the family member is comforting to the client when talking about death; it could be that the family member is already handling the finances for the client and it is practical to have them sit in on the consultation.

As long as the client affirmatively consents to having the family member present, I’m happy to include the family member in at least part of the consultation. However, ethical guidelines require that at some point, I politely, but firmly, kick the family member out of the room, so that I can speak to my client alone.

Why?

Client Identification. Before the family member is asked to wait outside, I let everyone in the room know that I represent the older person, and not the family member (even if the family member is footing the bill). I am duty bound to give the client my loyalty and confidentiality. Although she may ask other family members for their opinions and advice, at the end of the day, I take my direction from her.

Conflicts of Interest. An attorney cannot ethically represent two people who have actual, or even potential, conflicts of interest. Mostly this is avoided in the representation of an older person by making it clear that I represent her only, and not her family member, even if the family member and the client are joint owners of an asset. For example, if the client and her son jointly own a home, I can only give legal advice to the client. The advice I give her may not be what the son wants, but I cannot make that a consideration in advising my client. Which leads to the third C…

Confidentiality. An attorney has an obligation to keep information and communications between the client and the attorney confidential. If there are communications with my client in the presence of another person, those communications may not be confidential. I need to make sure that my client trusts that she can talk to me and have information kept confidential, if that is what she wishes.

Capacity. As an attorney, I have a duty to assess a client’s understanding of the estate planning process. Many older clients may have some memory issues, and a family member may be helpful in filling in details of finances. However, I need to assure myself that the client has the legal capacity to make important decisions about the disposition of their estate. For this reason, it is necessary that I have a conversation with the client, alone. Sometimes, the client’s capacity issues are so great that I cannot ethically have them sign a legal document. In that case, I will not be able to continue the representation, and may discuss guardianship or other options with the client and their family.

Understanding the “Four C’s” of attorney ethics when it comes to older clients will help their families understand that speaking to the client alone is for everyone’s protection and ultimately in the best interest of the client.

The Tax Cuts and Jobs Act of 2018 became law on December 22, 2017, and with it, tax professionals across the country cancelled their holiday plans to make sense of the sweeping changes to the tax code. The changes to the estate tax provisions are not so hard to understand, and they probably won’t affect you. Why not? Here’s a little perspective on just how few people pay federal estate tax:

According to the Tax Policy Center (a non-partisan joint venture between the Urban Institute and Brookings Institution), in 2017 there will be only about 11,300 estate tax returns filed, of which 5,500 will be taxable. “To put the number of estate tax returns filed in perspective, the Population Division of the Bureau of the Census projects that 2.7 million people will die in 2017. Thus, an estate tax return will be filed for only 1 in 237 decedents, and only 1 in 487 will pay any estate tax.”[1] This means that approximately 0.2% of the total U.S. population pays any federal estate tax.

The new tax law increases the exemption amount from $5.49 million dollars per person to $11.2 million dollars per person. The law keeps the so-called “portability” provision, which means that a married couple can combine and share their exemptions for a combined exclusion of $22.4 million dollars. The exemption amount is tied to inflation, so will increase every year.

So what does this mean for the 99.8% of the population that wasn’t paying federal estate tax under the old law? If you weren’t paying it before, you’re definitely not paying it now. And if you were paying it before, or were on the cusp of having to pay, the substantial increase may mean that you are off the hook.

But don’t be too complacent: the estate tax provision of the federal law sunsets in 2025. Also, if you live in New Jersey or Pennsylvania, your estate may still be subject to inheritance tax, depending on who you’ve named as beneficiaries. If your existing Will is more than 10 years old, your Will may contain provisions that are tied to the old federal and state estate tax laws, which may cause issues if it was probated today.

It’s good practice to have a professional review your estate plan every few years to make sure that it is still the best plan for you and your family, no matter what the current tax situation.

Want more information? To see how TCJA affects your income taxes, check out this calculator from The Tax Foundation, an independent nonprofit organization.

Interested in diving deeper? Every year, the Heckerling Institute on Estate Planning holds a conference to discuss developments in estate planning. This year’s conference focused on the TCJA (no surprise). For those wanting to know even more about TCJA, this article gives the highlights of TCJA.

Dash Farrow, LLP is not affiliated with The Tax Foundation or the Heckerling Institute on Estate Planning. By providing links to these organizations, Dash Farrow, LLP does not endorse these organizations and Dash Farrow receives no compensation from them. They are provided as a courtesy to our readers.

Chris Christie Signs 5 Bills Into Law, 2nd Chances For Offenders

Photo Credit “Patch.com NJ”

Gov. Chris Christie signed 5 bills into law this week, including one that helps New Jerseyans with a criminal record “reclaim their lives.”

From Patch.com:

“Christie on Wednesday signed a bipartisan package of bills that changes and modernizes the state’s expungement system, helping minor criminal offenders boost their prospects when they look for a job or engage in anything financially.

“Having a criminal record often impedes the ability to get a job, purchase a home or vehicle, or simply have and take care of a family,” said Christie. “We want to give those overcoming incarceration or the disease of addiction, young offenders, and all who have earned and deserve it, a second chance at life.”

The three laws will prohibit employment discrimination based upon an expunged criminal record; accelerate expungements and increase the number of convictions that can be expunged; and reduce the waiting period to expunge an entire juvenile record.”

This new law will indeed significantly help people in New Jersey with criminal records ‘reclaim their lives’. All too often I have spoken to clients that are severely hampered in their attempts to obtain employment, due to minor offenses that occurred many years ago. Under the new law, many of these clients who were previously precluded from an expungement will now be eligible. It will also shorten the waiting period for other applicants, allowing them to move on with their lives sooner. Lastly, it also addresses a long-standing problem of employers ignoring the expungement process through the use of private background checks and direct questioning about expunged convictions. I look forward to my clients and society benefiting from this new law by allowing them to get back into the workforce and rebuild their lives.

Since founding the firm in 2008, Ben Dash and Tim Farrow have provided expert legal advice to businesses and individuals throughout the region in areas such as real estate, litigation, corporate, criminal defense, and DUI. With experience in a variety of legal issues, including high-profile cases receiving national attention, Ben is often called upon to share his legal knowledge of real estate, corporate transactions, and litigation matters with business, trade and professional groups.

Before devoting his career to criminal defense more than 10 years ago, Tim worked on the other side of the courtroom – first as a law clerk in Camden County Superior Court for a criminal judge, then as an assistant prosecutor in Burlington County. Today, Tim provides criminal defense counsel at all levels, including expungement, driving-related charges, disorderly persons offenses, juvenile crimes and indictable (felony) offenses.

If you or someone you know needs legal assistance related to expungement contact the experts at Dash Farrow LLP today. Consultations are free and confidential.